Delhi District Court
State vs . Akash @ Vicky @ Javed on 30 August, 2013
IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL
FAST TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No. 89/13
Unique Case ID No.02405R0138572012
State Vs. Akash @ Vicky @ Javed
s/o late Sh. Sachdev Kumar @ Sakrullah
Permanent R/o Village Dabak, PO Baburi,
District-Varansi, UP.
Present add:-NW 29, Gali NO.5, Vishnu
Garden, Khayala (II), H. No. 46, C Block,
Jeewan Park, Uttam Nagar, New Delhi.
Date of Institution : 10.07.2012.
FIR No. 103/12 dated 13.04.2012.
U/s. 376/328/342 IPC.
P.S. Sagarpur.
Date of reserving judgment/Order:17.08.2013.
Date of pronouncement :30.08.2013.
JUDGMENT
1. The above named accused has been facing trial for having committed offence punishable u/s 376/342/328/468/471 IPC.
2. As per the case of the prosecution, on 12.4.2012 DD No. 5B was recorded on the complaint of Complainant Sant Bahadur regarding disappearance of her daughter aged 19 years namely 'K', (whose real name has been withheld in order to protect her identity). On 13.4.2012 DD NO.9A was recorded regarding recovery of prosecutrix 'K'. On that day at about 11 pm, SC No.89/13 Page 1 of 18 prosecutrix alongwith her mother Smt. Maya Devi reached Police Station and made statement that one year ago she was working as Telly Caller in the office of accused Vickey @ Akash at C-1, Janakpuri, which office he shifted from there later on. She further stated that she was in need of a job for which she made a call to Vicky from her mobile No.9911617220 upon which accused Vicky called her from his mobile No. 9911866198 and asked her to reach at his Sunder Vihar Office on 11.4.2012. She accordingly reached Sunder Vihar by bus at about 11.30 am. On reaching there she made a call to accused and accused Vicky took her to his room at Sunder Vihar on his motorcycle. Since the prosecutrix was having headache, accused gave her some medicine. After consuming the medicine, prosecutrix felt giddiness and she became semi conscious. Accused confined her in his room and he forcibly committed sexual intercourse with her. When she regained consciousness on 12.4.2012, she ran away, on getting a chance, from the room of accused at about 5 pm. and reached at Sunder Vihar Bus Stand from where she sent a message to her sister Meena, who brought her home and thereafter she alongwith her parents and sister came to the Police Station Sagarpur.
3. On this statement of the prosecutrix, FIR u/s 376/328/342 IPC was registered and the investigation was entrusted to SI Kusum Lata. Prosecutrix was got medically examined in DDU Hospital vide MLC No. 6698 dated 14.4.2012 and after her medical examination, doctor handed over five exhibits with sample seal, which were seized. Prosecutrix was counselled by NGO C.S.R. Ms. Kamal. Pointing out memo of the place of incident was prepared at the instance of prosecutrix. Accused was SC No.89/13 Page 2 of 18 arrested on 15.4.2012 at the instance of prosecutrix and her father from house No. NW-29, Gali NO.5, Vishnu Garden, Near Khyala, 2nd floor. Accused was got medically examined in DDU Hospital vide MLC No. 6829 dated 15.4.2012 and exhibits relating to accused were seized by the Police. Accused was produced before concerned ld. Duty Magistrate and he was sent to JC. Documents regarding age of prosecutrix were obtained as per which her date of birth is 26.2.1993. Exhibits of the case were sent to FSL for forensic examination. During the personal search of the accused after his arrest, a voter ID card No.ABL1172873 in his name was recovered. On verification of the same from the Electoral Registration Office, 30, Janak Puri Constituency, it was found to be forged. Accordingly Sections 468/471 IPC were added to the case.
4. After the completion of the investigation, the charge sheet was laid before the concerned Magistrate who committed the case to the Court of Sessions as the offence was exclusively triable by the Court of Sessions.
5. On 09.08.2012, my ld. Predecessor had framed charges u/s 342/328/376 IPC against the accused. The accused pleaded not guilty to the aforesaid charges and, accordingly, trial was held. The prosecution examined 18 witnesses during the course of trial and ld. APP also tendered in evidence the FSL result dated 30.7.2012 which have been marked as Ex. PA & PB. The statement of accused u/s 313 Cr.P.C. was recorded on 9.7.2013 wherein he denied all the incriminating evidence put to him and claimed false implications. According to him, he and the prosecutrix had developed friendship when she was working under SC No.89/13 Page 3 of 18 him as a Tele Caller. He was already married at that time. Prosecutrix had requested him to accept her friendship as she did not have any friend. He accepted her friendship but told her that he would not indulge in any physical relations with her as he is married man. However, prosecutrix kept on insisting him to have physical relations with her and it was upon her insistence and pressure that he started having sexual intercourse with her. He further stated that this continued for a long time and one day prosecutrix came to him saying that she is pregnant. On her asking, he gave her Rs. 5000/- to get her pregnancy terminated. He further stated that on 10.4.2012, prosecutrix had come to his room at Vishnu Garden to stay with him and told him that she does not want to go to her parental house as her father is a drunkard. He allowed her to stay in his room. At about 9 pm, she received a call from her mother and told her that she would not return home. Her family members also called her in the morning of 11.4.2012 asking her to come home but she refused to oblige them. Thereafter he dropped her near her room at Sagarpur. Her sister had come there to took her up. On 12.4.2012, at about 3 pm, he received a phone call from brother of the prosecutrix asking him to marry her. He refused. Thereafter prosecutrix called her saying that her family members have beaten her and are planning to send her to Nepal where she does not want to go. At her request, he reached Aggarwal Sweets, Sagarpur to meet her. Prosecutrix was present there alongwith her friend Nisha. Nisha told him that he has raped Krishna and spoiled her life. In the meantime, brother of prosecutrix namely Rajinder, her sister Meena, her mother and one another boy reached the spot and started beating him. Thereafter they made a call on telephone No. SC No.89/13 Page 4 of 18
100. PCR officials came to the spot and he was taken to Police Station Sagarpur. He was then falsely framed in this rape case.
6. The accused, however, did not lead any evidence in defence and the case was adjourned for final arguments.
7. When the case was taken up for final arguments on 31.07.2013, ld. APP pointed out that during the course of trial of the case, she had filed an application u/s 216 Cr.P.C. for framing additional charge u/s 468/471 IPC against the accused and the application has remained to be decided. On perusal of the case file, it was found that an application u/s 216 Cr.P.C. had been filed on behalf of prosecution on 29.09.2012 and the same had not been disposed off. Ld. Counsel for the accused also submitted that he is aware about the filing and pendency of the said application. Accordingly, both the parties were heard and it was directed that additional charge u/s 468/471 IPC be framed against the accused. Additional charge u/s 468/471 IPC was framed against the accused on 1.07.2013. On the same date, ld. APP, vide separate statement stated that she neither wants to lead any further evidence nor wants to recall any of the witnesses examined earlier regarding the additional charge u/s 468/471 IPC framed against the accused. Ld. Counsel for the accused vide separate statement stated that he wants to recall only PW-6 Sh. Harjeet Singh for further cross examination in view of the additional charge u/s 468/471IPC framed against the accused. Accordingly, PW-6 was recalled and was further cross examined by ld. Counsel for the accused on 06.08.2013.
SC No.89/13 Page 5 of 188. I have heard ld. APP for the State, ld. Counsel for the accused and have perused the entire documentary as well as oral evidence.
9. The prosecutrix has been examined as PW-1. In her examination in chief, she deposed that about one year before the date of incident, she was working as a Tele Caller in the office of accused at C-1, Janak Puri and thereafter the accused had shifted his office. In the year 2012, she was in the need of job. She contacted the accused from her mobile phone No. 9911617220 and requested him for a job. The accused asked her to visit his new office at Sunder Vihar on 11.4.2012. Accused told her that he would be coming to pick her up from Sunder Vihar Bus Stand. She reached Sunder Vihar at about 11.30 am and after some time accused came there on his motorcycle and took her to his room. The accused did not allow her to go for any interview. She was having headache and the accused gave her some medicine, on taking which she felt giddiness and become unconscious. She had repeatedly requested the accused to permit her to go as it was getting late to her but he did not allow her to go and kept her confined for the whole night. The accused raped her forcibly in the said room. She regained consciousness on the next day i.e. 12.4.2012 and succeeded in running away from the said room. She came to Sunder Vihar Bus Stand from where she sent a text message to her sister Meena, who came there and took her home. On the same day, she alongwith her mother, father and sister went to PS Sagarpur and intimated the incident to the police officials. She went to the police station again on 13.4.2012 alongwith her father and her statement Ex. PW1/A was recorded.
SC No.89/13 Page 6 of 18She was got medically examined at DDU Hospital vide MLC Ex. PW1/B. She showed the spot of incident to the police officials on 14.4.2012 vide memo Ex. PW1/C and the accused was arrested from his house on 15.4.2012 at her instance vide arrest memo Ex. PW1/D. Her underwear was taken by the doctor during her medical examination and the same was seized by the IO. She identified the same, when shown to her in the court.
10. In her cross examination, the prosecutrix deposed that she worked as a Tele Caller under the accused for six or seven months only i.e. from February, 2011 to November, 2011 After leaving the job, she continued to talk to the accused on mobile phone whenever he used to call her. Accused also used to send text messages to her on her mobile phone. They used to meet at some cyber cafe. She identified photographs mark DA, DB, DC and Mark DD shown to her by ld. cross examining Counsel. According to her, these photographs were taken when she had visited the room of the accused after leaving his job on the request of accused's sister. At that time the sister-in-law (Bhabhi) of accused was also present in the room. She further deposed that during the tenure of her service, under the accused, she had come to know that accused is already married. She had left job of the accused on account of non-payment of salary to her by the accused. She used to meet the accused daily in cyber cafe, however, she denied the suggestion that she used to visit the room of the accused at Sunder Vihar, Daily. She voluntarily stated that she had gone there only once i.e. at the time of death of the son of the accused. She deposed that she was given medicines by the accused with water and then he also gave her milk. She felt giddiness about 15 SC No.89/13 Page 7 of 18 minutes after consuming the medicine and slept after about half an hour. She did not know what happened thereafter. At that time, she was also suffering from fever. During that half an hour, she made requests to the accused to leave her at her house. No other conversation took place between her and the accused during that period of half an hour except the aforestated.
11. In her further cross examination, conducted on subsequent dates, the prosecutrix deposed that she did not remember if accused had gone out of the room on 11.4.2012. She deposed that accused had not done any wrong act with her on that day before she fell unconscious. She admitted that she regained her consciousness on next day i.e. 12.4.2012. On 11.4.2012 her mother had called her on her mobile phone and she had spoken to her. She admitted that she had sent some obscene text messages to the accused from her mobile phone no. 9911617220 on his mobile No.9289972954.
12. PW-2 is the mother of the prosecutrix, PW-3 is her father and PW-4 is her sister. PW-2 and PW-4 have specifically mentioned that prosecutrix did not tell them anything as to what had happened to her on 11.4.2012 and 12.4.2012. PW-4, however, deposed that she had received a message on her mobile phone from the prosecutrix on 12.4.2012 at about 5 pm and she came to know through that 'SMS' that prosecutrix was present at Sunder Vihar bus stand. She went there and brought her home. She made inquiries from the prosecutrix but the prosecutrix did not tell her anything as to where she had remained during that night or what had happened to her.
SC No.89/13 Page 8 of 1813. Undoubtedly, in a case involving offence of rape, the accused can be convicted on the sole basis of the testimony of the prosecutrix if the same is found to be credible, trustworthy and inspires confidence. It is only when the evidence of the prosecutrix is found to be of sterling quality and without any embellishment or prevarications that conviction can be rendered merely on the basis of her testimony.
14. In the instant case, the deposition of the prosecutrix, as noted herein above, does not inspire any confidence at all so far as accusation of rape are concerned. The prosecutrix was in regular contact with the accused through mobile phone calls and text messages even after she left his services. She had also visited the room of the accused wherein photographs Mark DA, DB, DC and DD were taken. She knew that accused is married and still she was fond of him. Further she has stated in her cross examination that she felt giddiness and slept after about half an hour of consuming the medicine given to her by the accused. She did not know what happened thereafter. She further deposed that during that half an hour i.e. prior to her going to sleep, she requested the accused to permit her to leave the house and no other conversation took place between them. In further cross examination, she deposed that accused had not done any wrong act with her on that day before she fell unconscious. She also admitted that on 11.4.2012, when she was with the accused, her mother had called her on her mobile phone and she had spoken to her mother.
15. It is thus evident that accused had not sexually SC No.89/13 Page 9 of 18 assaulted the prosecutrix before she became semi unconscious and fell asleep. What indicated to her that she has been raped by the accused after she became unconscious or she fell asleep, is not explained by the prosecutrix anywhere in her deposition. She nowhere says that when she regained consciousness, she found herself in nude condition or that accused was also lying nude besides her or that she was bleeding from any body part or that blood stains as well as semen stains had fallen upon her lower garments etc. etc. which may have given her an impression that she has been sexually assaulted during her unconsciousness. That having not been stated or explained by the prosecutrix, it is very difficult to believe that she had been raped by the accused. Furthermore, she admits having talked to her mother on 11.4.2012, when she was allegedly in the confinement of the accused but she did not tell her mother about the same. This sufficiently indicates that she was spending time with the accused voluntarily and had not become unconscious at all.
16. The accusation of rape are also not substantiated by the mobile phone record of the mobile phone number 9911617220 of the prosecutrix proved by the prosecution. The prosecutrix has herself deposed that she has been using the aforesaid mobile number. As per the customer application form, Ex. PW15/A, this mobile number has been alloted in the name of accused Akash on 9.2.2012. The call detail record of the said mobile phone Ex. PW15/C indicate that prosecutrix was in regular contact through calls as well as through text messages with the accused throughout the day on 10.4.2012 as well as in the morning of 11.4.2012 on his mobile phone No. 9911866198. This SC No.89/13 Page 10 of 18 demonstrates firstly that the mobile phone was gifted to her by the accused and secondly that the prosecutrix was regularly talking to the accused and it was not the first call received by her from the accused on 11.4.2012 after she left his job.
17. The sister of the prosecutrix appearing as PW-4 has mentioned her mobile number to be 9990696029. The call detail records Ex. PW15/A pertaining to the mobile number 9911617220 used by the prosecutrix show that she has received various text messages from the aforesaid mobile phone of her sister from 8.30 pm onwards on 11.4.2012 till 10.30 am on 12.4.2012. If it is to be believed that the prosecutrix had been forcibly confined by the accused in his room, she would have certainly informed her sister about her plight in her text messages and help would have come to her. That not being the case, it appears that the prosecutrix had been voluntarily staying with the accused in his room, being annoyed with her parents and was not willing to return home. This also belies the allegation of the prosecutrix that accused had administered some stupefying substance to her on taking which she had become unconscious as otherwise she would not have been in a position to receive or send text messages from her mobile phone. This also belies the testimony of PW-4 that after the disappearance of prosecutrix, she received first text message from her on 12.4.2012 at 5 pm. The facts mentioned by the accused in his statement u/s 313 Cr.P.C. appear to be true that the family of the prosecutrix knew that she was with the accused and they have been making calls to her and sending text messages to her in order to persuade her to return home.
SC No.89/13 Page 11 of 1818. Considering the aforementioned evidence on record, it has to be held that the prosecution has failed to prove the charges u/s 342 IPC, u/s 328 IPC and u/s 376 IPC against the accused.
19. So far as charge u/s 468/471 IPC is concerned, I feel that prosecution has been successful in establishing these charges against the accused. Before reverting to the evidence led by the prosecution in this regard, I feel it pertinent to reproduce Section 463 IPC, 464 IPC, 468 IPC and 471 IPC hereunder:-
463. Forgery.- (whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury), to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.
Section 464. Making a false document.- (A person is said to make a false document or false electronic record-
First- who dishonestly or fraudulently-
(a) makes, signs, seals of executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any(electronic signature) on any electronic record.
(d) makes any mark denoting the execution of a document or the authenticity of the (electronic signature), with the intention of causing it to be believed that such document or part of document, electronic SC No.89/13 Page 12 of 18 record or (electronic signature) was made, signed, sealed executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly-Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with (electronic signature) either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly-Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his (electronic signature) on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.) Section 468. Forgery for purpose of cheating.-
Whoever commits forgery, intending that the (document or electronic record forged) shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 471. Using as genuine a forged (document or electronic record).- Whoever fraudulently or dishonestly uses as genuine any (document or electronic record) which he knows or has reason to believe to be a forged (document or electronic record), shall be punished in the same manner as if he had forged such (document or electronic record).
20. Now it is the case of the prosecution that during the personal search of the accused after his arrest, an election ID card SC No.89/13 Page 13 of 18 in his name bearing No. ABL1172873 was recovered and which election I card turned out to be fake and forged after necessary inquiries. It is alleged by the prosecution that the accused had fabricated a fake election ID card in his name which he had used to get a room on rent from PW-6 and thus cheated PW-6. PW-6 Harjeet Singh is owner of house No. NW-29, Gali No.5, Vishnu Garden, New Delhi in which the accused had taken a room on rent. He deposed that accused had given him a photocopy of his election ID Card for the purpose of police verification. Accused had also shown him the original of the said card. He had brought to the court the said photocopy of the Election ID card of the accused and also the original verification form of the tenants prepared by Delhi Police and the same have been marked as Ex. PW6/A. The IO of the case SI Kusum Lata appearing as PW-18 has deposed that during the personal search of the accused, after his arrest, an Election ID Card in his name, was recovered which she identified when shown to her, which is Ex. P-2. It may be mentioned that the particulars mentioned in Ex. P-2 are identical to those mentioned in the photocopy of the election ID Card produced by PW-6, Ex. PW6/A, implying that the accused had given photocopy of this very election ID Card to his landlord PW-6. This Election ID card bears the name as Akash s/o Sachdev Kumar, sex-male, age as on 1.1.2009-20 years and address as 46-C Block, Jeewan Park, Uttam Nagar, New Delhi. It also bears his photograph.
21. PW-5 is the Election Officer from the Office of Chief Election Officer, Kashmere Gate, Delhi. He produced the record pertaining to Election ID card No. ABL1172873. As per their record, the said election card bearing the aforesaid number was issued in SC No.89/13 Page 14 of 18 the name of Praveen Kumar s/o Ram Chander Prasad r/o House No. 89A, F Block, Gali No.2, Sitapuri, Delhi. He proved his detailed report given by him to the IO of the case during the course of investigation as Ex. PW5/A and also proved the computerized copy of the voter list from concerned constitutency as Ex. PW5/B. Said Sh. Praveen Kumar in whose name the aforesaid election ID card bearing No. ABL1172873 has been issued by the Election Office has been examined as PW-7 and he deposed that he has been residing at house No. 89A, F Block, Gali NO.2, Sitapuri, Delhi since so many years as the said house belongs to his cousin.
22. So it is manifest from the deposition of aforementioned witnesses that the accused made or forged a false election ID card bearing No. ABL1172873 and used the same as genuine in order to cheat PW-6 or otherwise he would not have obtained a room on rent in the house of PW-6 for the reason that landlords insists upon the identification document of the perspective tenant and it is mandatory for the landlord to get the particulars of the tenant verified by Delhi Police. Therefore, the accused is liable to be convicted u/s 468/471 IPC.
23. Resultantly, accused is hereby acquitted of the charges u/s 342 IPC, 328 IPC and 376 IPC. However, he is convicted for having committed the offences punishable u/s 468/471 IPC.
Announced in open (VIRENDER BHAT)
Court on 30.08.2013. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.
SC No.89/13 Page 15 of 18
SC No.89/13 FIR No. 103/12, PS Sagarpur.
State Vs. Akash @ Vicky @ Javed.
30.8.2013
Present : Mr. Ashok Kumar, Ld. APP for State.
Accused present in JC alongwith counsel Sh. Mahipal Singh, Advocate.
Vide separate judgment announced in open Court today, the accused has been acquitted of the charges u/s 342/328/376 IPC. However, he has been convicted for offences u/s 468 and 471 IPC.
Arguments heard on the point of sentence.
Ld. APP has argued for a stern sentence to the convict saying that he has forged the Election ID card with a view to cheat the public at large.
On the other hand, ld. Counsel for the convict submitted that the convict had got the election ID card prepared from some agent on payment of money and he was assured that the election ID card is a genuine one. It is submitted that the convict never knew that the agent had infact defrauded him by issuing him a forged ID card. He submitted that the convict did not use the said Election ID Card to cheat any person. According to him, the intention of the convict, in obtaining the Election ID card, was to get an identity proof to stay in Delhi.
I have considered the submissions of ld. APP as well as ld. Counsel and have taken into account the circumstances in SC No.89/13 Page 16 of 18 which the convict had obtained the forged Election ID card.
It may be noted that the convict was indicted in this case primarily for the offences u/s 342/328 & u/s 376 IPC. It was by matter of chance only that an Election ID Card was found in his possession at the time of his personal search after his arrest, which was relvealed to be a forged ID card. The convict had used this forged ID card only for the purposes of obtaining a room on rent in the house of PW-6. There is no other instance brought to my notice by the prosecution, wherein the convict had used this Election ID Card to cheat anybody else.
Record reveals that the convict has been in judicial custody since the date of his arrest i.e. 15.04.2012. I think that period of incarceration in jail suffered by the convict has had enough deterrent and reformative effect upon him and it is totally un-necessary to prolong his further detention in custody.
Considering all the aforesaid facts and circumstances of the case and the rival submissions made on behalf of both the parties, I am of the opinion that demands of justice would be met if the convict is sentenced to the period of imprisonment already undergone for the offences punishable u/s 468 & u/s 471 IPC.
Therefore, the convict is sentenced to period of imprisonment already undergone for both the offences u/s 468 IPC as well as u/s 471 IPC. However, a fine of Rs. 3000/- is imposed upon the convict for the offence u/s 468 IPC. The convict shall suffer further simple imprisonment for a period of two months in case of default in payment of fine.
Fine stands paid.
Convict be released from custody, if not required to be detained in any other case.
SC No.89/13 Page 17 of 18Copy of this order and judgment be supplied to convict.
File be consigned to Record Room.
Announced in open Court (VIRENDER BHAT) on this 30th of August,2013. ASJ (Special FTC) :Dwarka New Delhi.
SC No.89/13 Page 18 of 18